By Selwyn Duke

Often a phenomenon of bad marriages, “selective deafness” is
when one hears only what is convenient. The same failing manifests itself in government
when politicians and judges hear the Constitution talk only when it sings their
tune. Worse still, sometimes these people behave as if the document says things
it doesn’t. This is the equivalent of hearing things.

Kansas governor Sam Brownback heard something recently.
He received a letter from Attorney General Eric Holder stating
that Kansas’ newly enacted legislation prohibiting government agents from
enforcing federal gun laws in the state “directly conflicts with federal law
and is therefore unconstitutional.” Unconstitutional, Eric? My, how antebellum
of you.

Meanwhile, the South Carolina House just passed
a law criminalizing the enforcement of ObamaCare within its state, a move
that critics will also attack with talk of the Supremacy Clause.

Speaking of supremacy, AG Holder also told Brownback that
the feds would litigate if necessary “to prevent the State
of Kansas from interfering with the activities of federal officials enforcing
federal law,” which means that the case would end up before the Supreme Court.

So now the administration that created ObamaCare, refuses to
enforce immigration law, illegally bypassed the Senate to make recess
appointments, and has a DOJ that won’t offer whites voting-rights protections
cites constitutionalism in defense of its agenda. This is a bit like
serial-killing abortionist Kermit Gosnell seeking to avoid the death penalty by
preaching the sanctity of life.

For Brownback’s part, he defended Kansas’ law by pointing
out that the right to bear arms is enshrined not only in the US Constitution
but also the Kansas Bill of Rights. This is true, but as Cicero learned 2000
years ago and hate-speech apparatchiks insist today, the truth isn’t always a
defense. And the truth is, Toto, we’re not in Kansas anymore. We now live in a
place where the rule of law has been supplanted by the rule of lawyers.

G.K. Chesterton once noted that “[t]here are only two ways
of governing: by a rule and by a ruler.” We should note that in our nation it
increasingly is the latter and that the pretense of constitutionality is now
often used as a pretext for unconstitutional designs. The contemporary left’s
attitude is much like that of the Jim Carrey lawyer character in Liar Liar who, subject to a spell that
precluded his lying for 24 hours, responded to a judge’s question about why he
objected to an argument in court by saying “Because it’s devastating to my
case!” While the left is never that honest, their definition of a proper legal
argument is similar: whatever works for them at the moment. Unfortunately, they
have also managed to appoint many judges who work for them.

Thus, when leftists such as Eric Holder say, “We’ll see you
in court,” our response should be, “I’ll see your court and raise you a state
executive branch.” After all, how else do you respond when dealing with a
stacked-deck Supreme Court that, using the greasiest of lawyer-craft, rubber
stamps blatantly unconstitutional ObamaCare? How can the High Court be ascribed
deific infallibility when it reads the same document in different times and
draws different conclusions?

First remember here that the Supreme Court is only meant to
be supreme among courts. And what of
judicial review, the principle that courts shall be the ultimate arbiter of the
Constitution’s meaning for all branches of government?

It is found nowhere in the Constitution.

It originated with the 1803 Marbury v. Madison decision in which Chief Justice John Marshall
declared the right for the Court.

In other words, the Supreme Court was given big-kahuna powers
by…the Supreme Court. So George Washington refuses to be made king, and shortly
afterwards, like Napoleon crowning himself emperor, the Court makes itself an
oligarchy. And we abide by this…why?

If thus characterizing the Court smacks of typical modern
hyperbole, note that Thomas Jefferson warned
that an oligarchy is precisely what the institution would become if judicial
review were accepted. He said about the branches of government that it wasn’t correct
to give “one of them alone, the right to prescribe rules for the government of
the others…” and that if Justice Marshall’s opinion held sway, “then indeed is
our constitution a complete felo de se” — this means a suicide pact.

Yet there is an
even larger point. I am a staunch constitutionalist, but this is much like
saying you’re an avid boxer: you can only indulge your passion with the
cooperation of others. If your opponents refuse to abide by Queensbury rules,
“boxing” becomes impossible as you’re reduced to a no-holds-barred, outlaw
fight. And then insistence on unilaterally abiding by the rules only ensures
painful defeat. Likewise, what happens when you play by constitutional rules
despite your opponents’ subscribing to no-holds-barred, outlaw governance?

The point is that
our constitution is the contract the American people have with one another. But
when a party subject to a contract repeatedly violates its terms for the
purposes of benefitting itself and disadvantaging the other parties, that
contract is rendered null and void. For it has then become a suicide pact — especially
for those who insist on fighting fair with barbarians.

This can be
illuminated further by expanding on the boxing analogy, with the rules of
boxing being the Constitution, your opponent representing the feds’ interests,
boxing’s ruling body being the legislature, and the ringside judges being the
Court. While the ruling body makes the rules, the judges’ role is to simply
apply them, and your opponent has an obligation to follow them. But what if
your opponent consistently violates them to gain an advantage? What happens
when the judges, operating with an idea that the rules are “living,” only apply
them in a way that suits whatever rooting interest they have at the time?
Furthermore, what if your opponent has a majority of the judges in his pocket
and they will ensure his victory? You’d have to be punchy to even step into
that ring.

A prerequisite for
any civilized endeavor — be it a game or government — is the necessary degree
of civility on the part of those involved. Barring this, the wise move is to
walk away and, in no uncertain terms, serve notice that you won’t play until
there is agreement to follow the rules. And if your opponents are so intent on domination
that they follow you outside the ring to fight, then you know it’s a back-alley
brawl and proceed accordingly. Remember that when people will yield to
neither reason nor law, there is only one thing left that can make them yield.

What we often forget when preaching constitutionalism is
that the principle is conditional. As our second president John Adams explained,
“Our Constitution was made only for a moral and religious people. It is wholly
inadequate to the government of any other.” “Moral and religious” describe
neither the leftists controlling our federal government nor those voting them
into power. So love it though we may, our constitution is no more suited to
much of modern America than it is to
the Taliban. The sooner we accept this, the sooner we’ll free ourselves from
the shackles of the left’s selective law just as it long ago freed itself from
the guide rails of all law.

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